What a Will Won’t Do (and What It Will)

A Will is a document in which a person, called the “Testator” (1), states to whom property is to pass after the Testator’s death and appoints someone, called the “Executor”(2), to carry out those wishes. As explained below, a Will can do a few other things too. There are, however, some things a Will won’t do:

A Will won’t control what happens to assets that pass directly to a beneficiary

If an asset is held in the name of the deceased only, then upon his or her death that asset passes through the Will (as part of the “probate estate”) in accordance with what the Will says. However, if an asset is held in the name of the deceased and another person jointly, or as “Joint Tenants With Right of Survivorship” (JTWROS), then the asset passes upon the death of the deceased to the other joint tenant automatically. The same is true where real estate is held by a husband and wife, a form of ownership known as “by the entirety” — upon the death of one spouse, the real estate automatically passes to the other spouse. The asset is said to “pass by operation of law”. Such an asset does not pass through the Will, and the Will does not control it. A similar outcome results from assets that name a beneficiary, such as life insurance, and from assets that have a Payable On Death (POD) or Transfer On Death (TOD) designation. Those assets pass directly to the beneficiary and do not pass through the Will(3).

A Will won’t disinherit a spouse

New York, like many other states, has a Spousal Election statute(4), meaning that a spouse automatically has the right to a certain portion of the estate even if the Will says otherwise. In order to affect the right of a spouse to inherit from the deceased, the couple must have signed a pre-nuptial agreement (also known as an antenuptial agreement) before marriage, or a post-nuptial agreement after marriage, in which the spouse specifically waives his or her right to inherit.

A Will won’t (in and of itself) automatically eliminate estate or death taxes

A common and persistent misunderstanding that people have is the belief that simply having a Will makes the deceased’s property automatically pass free of estate or death taxes. This is simply untrue. What can save taxes are the provisions of a carefully and properly drafted Will that contains estate tax planning strategies built into it. A common example is making sure the estate tax exemptions for each spouse are utilized and maximized. Just having a Will won’t make the estate tax free. Said a different way, if a person’s estate is big enough to trigger an estate tax, just having a Will won’t affect the taxes that would otherwise be due. If, however, that Will happens to contain wording that minimizes the estate tax, it is this wording — and not the mere existence of a Will — that may affect the amount of tax due. Keep in mind that even if a sophisticated Will reduces taxes, it often cannot completely eliminate them.

A Will won’t ensure that your heirs and beneficiaries don’t fight

Some people believe that expressing your wishes in a Will makes your intentions so clear that your family won’t fight after your death. Or that everyone is bound automatically and that’s all there is to it. Or that including an in terrorem clause in your Will (saying that anyone who contests the Will gets nothing) will eliminate fights. No: unfortunately, there is such a thing as a “Will contest” or a “contested probate” — i.e., a common legal proceeding in which interested parties fight over whether a Will is valid or what its correct meaning is. While having your wishes set out clearly in a Will is certainly a better way to state your intentions than to have your family simply guess at what you might have wanted, this is no guarantee that everyone will accept the Will without argument.

A Will won’t update itself

Circumstances change. People go through life’s various stages. Children are born and grow up. Couples divorce. People die. Assets change over time. A Will done many years ago needs to be reviewed periodically and updated when necessary.

A Will won’t take effect until it is probated

Probate is the legal proceeding by which a Will is deemed by the Court to be the valid Last Will and Testament of the deceased, and the Executor is appointed by the Court and is issued Letters Testamentary to have the power and authority to act on behalf of the estate.

A Will won’t do any good if it can’t be located after your death

Keep your Will in a safe place and make sure the Executor named in the Will and your loved ones know where it is.

What a Will will do

A Will can detail your funeral and burial wishes. It can name the person or people who should raise your minor children if both you and your spouse die. It can, through the use of various trusts, protect assets left to a spouse, a minor child, a person with many creditors, or a person with disabilities or special needs. If drafted correctly, it can save taxes.

A Will is one of the most basic documents that virtually every person should have. In situations involving second marriages, a Will (and often a Trust) is an absolute necessity to avoid unwanted outcomes. Often, a Will is prepared as part of a package of Advance Directives that include a Power of Attorney, a Health Care Proxy, and a Living Will. These documents make sure your wishes are expressed, that an agent to carry out your wishes is appointed, and that your agent has the authority to carry out your wishes.

DISCLAIMER: The above article discusses general principles only — there are important exceptions and subtle nuances that may apply to your particular situation. Therefore it is strongly recommended that you speak to a professional well versed in these matters if you are interested in a Will or have questions or concerns about estate planning and succession issues.

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Notes:

(1) A female has historically been called a “Testatrix”.

(2) A female has historically been called an “Executrix”.

(3) New York law does provide, however, that a will can change the beneficiary designation on an In Trust For account (also called a Totten Trust). EPTL 7-5.2

(4) EPTL 5-1.1-A et seq.